U.S. v. HUGHES

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AMD ORDER

Petitioner Reuben Hughes ("Hughes"), pro se, petitions the Court
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For
the following reasons, his petition is denied.

I. CASE HISTORY

In June 1998, Hughes was convicted on five counts of trafficking
cocaine and cocaine base, and one count of illegal firearms possession.
Following an evidentiary hearing concerning the amount of cocaine base
processed by Hughes' organization, the Court sentenced him to life
imprisonment on each of the five drug trafficking charges (Counts One
through Five). The Court also sentenced Hughes to 10 years on the
firearms violation (Count Six).

On appeal, the Seventh Circuit affirmed Hughes' conviction and
sentence, Hughes petitioned the United States Supreme Court for
a Writ of Certiorari. On November 6, 2000, the Supreme Court
granted his petition and remanded to the Seventh Circuit "for further
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consideration in light of Apprendi v. New Jersey,
530 U.S. 466 (2000)." Hughes v. United States, 531 U.S. 975 (2000),

In February 2001, the Seventh Circuit affirmed Hughes' conviction and
sentence on all Counts except Counts Three and Four, and remanded to this
Court for re-sentencing. As Hughes still faced life sentences stemming
from Counts One, Two, and Five, the government moved to dismiss Counts
Three and Four, and this Court granted the government's motion. On June
14, 2001, the Seventh Circuit dismissed Hughes' appeal for lack of
jurisdiction. On March 18, 2002, the Supreme Court denied Hughes'
petition for Writ of Certiorari.

On March 18, 2003r Hughes filed his § 2225 petition. On June 27,
2003, Hughes filed for permission to amend his petition, and the Court
granted his request.

To obtain habeas corpus relief based on perjured testimony, a
petitioner must, show: 1) that the prosecution presented perjured
testimony, (2) that the prosecution knew or should have known of the
perjury, and (3) that some likelihood exists that the false testimony
impacted the jury's verdict. Harding v. Walls, 300 F.3d 824, 828 (7th Cir.
2002). The Court "does not employ the term of perjury in its technical,
legal sense in these types of cases." Shasteen v. Saver,
252 F.3d 929, 933 (7th Cir. 2001). Rather, it is "enough that the jury was
likely to understand the witness to have said something that was, as the
prosecution knew, false." Id. (internal citations omitted).
However, "mere inconsistencies in testimony by government witnesses do
not establish the government's knowing use of false testimony."
Id. (internal citations omitted).

Hughes cites two instances in which he claims the prosecution knowingly
and willfully used false testimony by witness Nixon. First, Hughes points
out that Nixon initially testified that a
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singular transaction occurred in late 1993, but later stated that
it happened in October 1994, Since a specific transaction can occur only
once, Hughes contends that Nixon's testimony regarding one of these dates
must be false. Second, Hughes argues that Nixon falsely testified that he
chose to testify only because Hughes signed a statement implicating him.
As both Hughes and the government acknowledge, no such statement exists.
Ergo, Hughes notes that Nixon's testimony concerning this alleged
statement must also be false.

Given the above evidence, Hughes fails even the first, part of this
test. While it is true that Nixon may have incorrectly recounted the
details of specific events, it is not true that "the jury was likely to
understand the witness to have said something that was . . . false,"
After all, the prosecution did not hide the minor inconsistencies within
Nixon's testimony. It was the prosecution that elicited Nixon's
inconsistent testimony regarding the transaction that occurred in either
1993 or 1994  thereby placing both versions of the story before
the jury. Similarly, Hughes' expansive discovery revealed that Hughes
never signed a statement implicating Nixon  and Hughes' counsel
used the statement's nonexistence when attempting to impeach Nixon on
cross-examination. Consequently, Hughes' claims concerning prosecutorial
use of false testimony must therefore be denied.
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Since Nixon's testimony did not reach a problematic level of falsity,
neither Hughes' trial nor appeal counsel can be faulted in their handling
of this testimony. Accordingly, Hughes' ineffective assistance of counsel
claims concerning this allegedly false testimony also fail,

B. Apprendi

Upon remand from the Supreme Court, the Seventh Circuit conducted an
Apprendi  based review of Hughes' sentence. With respect to Counts
One, Two, and Five, the Seventh Circuit found that, although this Court
committed clear error in sentencing Hughes, its error failed to prejudice
the defendant. Conversely, the Seventh Circuit found reversible error
concerning Hughes' sentence under Counts Three and Four, and remanded for
re-sentencing (those counts were later dismissed).

Therefore, Hughes has now received every right Apprendi entitles him
to. This renders moot Hughes' claim concerning this Court's use of the
preponderance of the evidence standard in the original sentencing, and
his claim that appellate counsel was ineffective by not raising Apprendi.

C. The 21 U.S.C. § 851(b) colloquy

Hughes also challenges his sentence on the grounds that the Court
failed adequately to engage in a 21 U.S.C. § 851(b) colloquy.
Additionally, Hughes insists that his lawyer's supposed failure to object
to this inadequate colloquy constitutes ineffective
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assistance of counsel. Section 851(b) requires that the prosecuting
United States attorney and the Court comply with certain procedures prior
to enhancing a defendant's sentence due to previous convictions.
Specifically, the statute demands that, "If the United States attorney
files an information under this section, the court shall after conviction
but before pronouncement of sentence inquire of the person with respect
to whom the information was filed whether he affirms or denies that he
has been previously convicted as alleged in the information, and shall
inform him that any challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be raised to attack the
sentence." 21 U.S.C. § 851(b).

Here, Hughes alleges two infractions that he feels warrants a
re-sentencing. First, he claims that the Court failed to inquire as to
whether he affirmed or denied his previous listed convictions. However,
as the transcript amply demonstrates, the Court did engage in such an
inquiry. In fact, during this questioning, Hughes claimed that he failed
to remember two of the listed convictions, though he did not specifically
dispute their existence. (Tr. 1/13/99 p.m., pg. 24-26.) Thus, the Court
finds that it complied with this requirement.

Second, Hughes argues that the Court failed to inform him that any
challenge to a prior conviction which is not made before sentence is
imposed may not thereafter be raised to attack
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sentence. Since Hughes has not attacked any of his
previous convictions, the Court finds this claim moot.

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